Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 2429

IN THE HIGH COURT OF ALLAHABAD
RAJIV GUPTA, J.
Sameer Raza - Applicant
Versus
State of U.P. and Another - Opposite Parties
APPLICATION UNDER SECTION 482 NO. 38562 OF 2023.
Decided On : 01-12-2023

Advocates appeared:
For the Applicant : Vikrant Gupta
For the Opposite Party : G.A.

Dishonour of a cheque under Section 138 is actionable regardless of claims of stop payment or misplaced cheque, with legal presumptions favoring existence of debt or liability.

Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code, 1973 - Section 482 - Dishonour of cheque - Application for quashing summoning order and revisional order denied as both orders were found legal, and no merit in pleas of the applicant regarding non-liability, misplaced cheque, or stop payment - Legal presumption under Sections 118 and 139 exists regarding the existence of debt or liability - Jurisdiction under Section 482 Cr.P.C. not to conduct mini-trial. (Paras 2, 12, 14, 18)

(B) Delay - Limitation Act - Application under Section 5 of Limitation Act rejected for lack of reasonable grounds for condoning delay - No merit found in revision challenging summoning order. (Paras 17, 18)

Facts of the case:
The applicant was summoned under Section 138 of N.I. Act for issuing a dishonoured cheque for Rs. 6,87,500/- due to stop payment. The applicant contended there was no due debt and that the cheque was misplaced.

Findings of Court:
The summoning and revisional orders are upheld as legal and proper, with no grounds for quashing; jurisdiction does not permit a mini-trial at this stage.

Issues: Whether the dishonour falls under Section 138 criteria, the effect of stop payment, and the implications of cheque being misplaced.

Ratio Decidendi: The court held that even if a cheque is misplaced or if stop payment is claimed, proceedings under Section 138 can proceed, reaffirming the necessity for evidence at trial to establish claims of debt and liability.

Result: Application dismissed.

Table of Content
1. facts of applicant's cheque dishonor. (Para 2)
2. allegations of cheque dishonor under n.i. act. (Para 3 , 4)
3. arguments against liability for dishonored cheque. (Para 5 , 6)
4. state's rebuttal of applicant's claims. (Para 7 , 8)
5. arguments for maintaining the legal presumption under the n.i. act. (Para 9)
6. judicial interpretation of section 138 n.i. act. (Para 10 , 11 , 12 , 13 , 14)
7. rejection of arguments against cheque liability. (Para 15)
8. final ruling on application merit and dismissal. (Para 16 , 19)
9. final assessment and dismissal of application. (Para 17 , 18)

JUDGMENT

Rajiv Gupta, J.

Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

2. The present application under Section 482 Cr.P.C. has been filed for quashing summoning order dated 11.8.2022 passed by learned Additional Chief Judicial Magistrate, Court No. 3, Rampur, in Complaint Case No. 228 of 2022 ( Haseeb Ahmad v. Sameer Raza ) under Section 138 of N.I. Act, P.S. Civil Line, District Rampur, as well as order dated 30.11.2022 passed by learned Session Judge in Criminal Revision No. 97 of 2022 ( Sameer Raza v. State of U.P. ) affirming the impugned order dated 11.08.2022 passed by learned Magistrate on the ground that the revision is barred by limitation.

3. As per the allegations made in the complaint, it is alleged that applicant had issued a Cheque No. 000022 dated 30.4.2022 for a sum of Rs. 6,87,500/- to Opposite Party No.2, however, on presentation of the said cheque, the same was dishonoured by the bank and returned back. After the dishonour of the cheque, a notice was sent to the applicant to make good the payment, however, despite being noticed, the due amount was not paid, as such, the present complaint under section 138 of N.I. Act has been instituted against the applicant.

4. Learned Magistrate on the basis of allegation made in the complaint and after making the requisite enquiry under Sections 200 and 202 CrPC, has summoned the applicants to face trial under Section 138 of Negotiable Instrument Act vide order dated 11.8.2022.

5. Learned counsel for the applicant has submitted that the cheque in question was misplaced and has infact been misused by the applicant, therefore, the proceedings under section 138 of the N.I. Act cannot be drawn against him.

6. Learned counsel for the applicant has further submitted that reason for the dishonour of the cheque as reported by the bank is "stop payment", as such also, proceedings under Section 138 of the Negotiable Instruments Act cannot be drawn against the applicant. He has further submitted that no due debt or liability exists as against the drawee, therefore, proceedings under Section 138 of N.I. Act can also not be drawn against him and the entire proceedings is therefore liable to be quashed.

7. Per contra, learned A.G.A. has submitted that learned Magistrate on the basis of allegations made in the complaint and after making requisite enquiry, has summoned the applicant to face trial under Section 138 of Negotiable Instrument Act vide order dated 11.8.2022.

8. Learned AGA has further pointed out that there is a legal presumption under Sections 118 and 139 of the N.I. Act against the applicant and as such, impugned summoning order is just, proper and legal and do not call for any interference by this Court. He has further submitted that there is absolutely no illegality or infirmity in the impugned summoning order, calling for any interference in exercise of inherent power under Section 482 CrPC.

9. Learned AGA has further submitted that even in the case of misplaced cheque as claimed by the applicant, proceedings under section 138 of N.I. Act can always be drawn against him. He has further submitted that where dishonour of the cheque has been made for the reason of stop payment, then too offence under Section 138 of N.I. Act is clearly made out against the applicant. He has further submitted that in order to determine the question where t